Lewis A. Kaplan, District Judge: [*303]

Plaintiffs, eight major United States motion picture studios, distribute many of their copyrighted motion pictures for home use on digital versatile disks ("DVDs"), which contain copies of the motion pictures in digital form. They protect those motion pictures from copying by using an encryption system called CSS.  CSS-protected motion pictures on DVDs may be viewed only on players and computer drives equipped with licensed technology that permits the devices to decrypt and play–but not to copy–the films.

Late last year, computer hackers devised a computer program called DeCSS that circumvents the CSS protection system and allows CSS-protected motion pictures to be copied and played on devices that lack the licensed decryption technology.  Defendants quickly posted DeCSS on their Internet web site, thus making it readily available to much of the world.  Plaintiffs promptly brought this action under the Digital Millennium Copyright Act (the "DMCA") to enjoin defendants from posting DeCSS and to prevent them from electronically "linking" their site to others that post DeCSS.  Defendants responded with what they termed "electronic civil disobedience"—increasing their efforts to link their web site to a large number of [*304] others that continue to make DeCSS available.

Defendants contend that their actions do not violate the DMCA and, in any case, that the DMCA, as applied to computer programs, or code, violates the First Amendment.(1)  This is the Court's decision after trial, and the decision may be summarized in a nutshell.

Defendants argue first that the DMCA should not be construed to reach their conduct, principally because the DMCA, so applied, could prevent those who wish to gain access to technologically protected copyrighted works in order to make fair—that is, non-infringing—use of them from doing so.  They argue that those who would make fair use of technologically protected copyrighted works need means, such as DeCSS, of circumventing access control measures not for piracy, but to make lawful use of those works.

Technological access control measures have the capacity to prevent fair uses of copyrighted works as well as foul.  Hence, there is a potential tension between the use of such access control measures and fair use.  Defendants are not the first to recognize that possibility.  As the DMCA made its way through the legislative process, Congress was preoccupied with precisely this issue. Proponents of strong restrictions on circumvention of access control measures argued that they were essential if copyright holders were to make their works available in digital form because digital works otherwise could be pirated too easily.  Opponents contended that strong anticircumvention measures would extend the copyright monopoly inappropriately and prevent many fair uses of copyrighted material.

Congress struck a balance. The compromise it reached, depending upon future technological and commercial developments, may or may not prove ideal.(2)  But the solution it enacted is clear.  The potential tension to which defendants point does not absolve them of liability under the statute.  There is no serious question that defendants' posting of DeCSS violates the DMCA.

Defendants' constitutional argument ultimately rests on two propositions—that computer code, regardless of its function, is "speech" entitled to maximum constitutional protection and that computer code therefore essentially is exempt from regulation by government. But their argument is baseless.

Computer code is expressive. To that extent, it is a matter of First Amendment concern.

But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement.  Code causes computers to perform desired functions.  Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action.

In an era in which the transmission of computer viruses—which, like DeCSS, are simply computer code and thus to some degree expressive—can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination [*305] of code in appropriate circumstances.  The Constitution, after all, is a framework for building a just and democratic society.  It is not a suicide pact.

Plaintiffs are eight major motion picture studios.  Each is in the business of producing and distributing copyrighted material including motion pictures.  Each distributes, either directly or through affiliates, copyrighted motion pictures on DVDs.  Plaintiffs produce and distribute a large majority of the motion pictures on DVDs on the market today.

Defendant Eric Corley is viewed as a leader of the computer hacker community and goes by the name Emmanuel Goldstein, after the leader of the underground in George Orwell's classic, 1984. He and his company, defendant 2600 Enterprises, Inc., together publish a magazine called 2600: The Hacker Quarterly, which Corley founded in 1984, and which is something of a bible to the hacker community.  The name "2600" was derived from the fact that hackers in the 1960's found that the transmission of a 2600 hertz tone over a long distance trunk connection gained access to "operator mode" and allowed the user to explore aspects of the telephone system that were not otherwise accessible.  Mr. Corley chose the name because he regarded it as a "mystical thing," commemorating something that he evidently admired.  Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people's e-mail, intercept cellular phone calls, and break into the computer systems at [*309] Costco stores and Federal Express.  One issue contains a guide to the federal criminal justice system for readers charged [*19] with computer hacking.  In addition, defendants operate a web site located at (“2600.com”), which is managed primarily by Mr. Corley and has been in existence since 1995.

Prior to January 2000, when this action was commenced, defendants posted the source and object code for DeCSS on the 2600.com web site, from which they could be downloaded easily.  At that time, 2600.com contained also a list of links to other web sites purporting to post DeCSS.

"We have to face the possibility that we could be forced into submission.  For that reason it's especially important that as many of you as possible, all throughout the world, take a stand and mirror these files."

The effect on plaintiffs of defendants' posting of DeCSS depends upon the ease with which DeCSS decrypts plaintiffs' copyrighted motion pictures, the quality of the resulting product, and the convenience with which decrypted copies may be transferred or transmitted.

As noted, DeCSS was available for download from defendants' web site and remains available from web sites on defendants' mirror list.  Downloading is simple and quick–plaintiffs' expert did it in seconds.  The program in fact decrypts at least some DVDs.  Although the process is computationally intensive, plaintiffs' expert decrypted a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. The copy is stored on the hard drive of the computer.  The quality of the decrypted film is virtually identical to that of encrypted films on DVD.  The decrypted file can be copied like any other.

The decryption of a CSS-protected DVD is only the beginning of the tale, as the decrypted file is very large–approximately 4.3 to 6 GB or more depending on the length of the film–and thus extremely cumbersome to transfer or to store on portable storage media.  One solution to this problem, however, is DivX, a compression utility available on the Internet that is promoted as a means of compressing decrypted motion picture files to manageable size.

DivX is capable of compressing decrypted files constituting a feature length motion picture to approximately 650 MB at a compression ratio that involves little loss of quality.(12)  While the compressed sound and graphic files then must be synchronized, a tedious process that took plaintiffs' expert between 10 and 20 hours, the task is entirely feasible. Indeed, having compared a store-bought DVD with portions of a copy compressed and synchronized with DivX (which often are referred to as "DivX'd" motion pictures), the Court finds that the loss of quality, at least in [*314] some cases, is imperceptible or so nearly imperceptible as to be of no importance to ordinary consumers.(13)

The fact that DeCSS-decrypted DVDs can be compressed satisfactorily to 650 MB is very important.  A writeable CD-ROM can hold 650 MB.  Hence, it is entirely feasible to decrypt a DVD with DeCSS, compress and synchronize it with DivX, and then make as many copies as one wishes by burning the resulting files onto writeable CD-ROMs, which are sold blank for about one dollar apiece.(14)  Indeed, even if one wished to use a lower compression ratio to improve quality, a film easily could be compressed to about 1.3 GB and burned onto two CD-ROMs.  But the creation of pirated copies of copyrighted movies on writeable CD-ROMs, although significant, is not the principal focus of plaintiffs' concern, which is transmission of pirated copies over the Internet or other networks.

Network transmission of decrypted motion pictures raises somewhat more difficult issues because even 650 MB is a very large file that, depending upon the circumstances, may take a good deal of time to transmit.  But there is tremendous variation in transmission times.  Many home computers today have modems with a rated capacity of 56 kilobits per second.  DSL lines, which increasingly are available to home and business users, offer transfer rates of 7 megabits per second.  Cable modems also offer increased bandwidth.  Student rooms in many universities are equipped with network connections rated at 10 megabits per second.  Large institutions such as universities and major companies often have networks with backbones rated at 100 megabits per second.  While effective transmission times generally are much lower than rated maximum capacities in consequence of traffic volume and other considerations, there are many environments in which very high transmission rates may be achieved.  Hence, transmission times ranging from three to twenty minutes to six hours or more for a feature length film are readily achievable, depending upon the users' precise circumstances.(15)

At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have no direct evidence of a specific occasion on which any person decrypted a copyrighted motion picture with DeCSS and transmitted it over the Internet. But that is unpersuasive.  Plaintiffs' expert expended very little effort to find someone in an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one of plaintiffs' copyrighted motion pictures, for a [*315] copy of Sleepless in Seattle.  While the simultaneous electronic exchange of the two movies took approximately six hours, the computers required little operator attention during the interim.  An MPAA investigator downloaded between five and ten DVD-sourced movies over the Internet after December 1999.  At least one web site contains a list of 650 motion pictures, said to have been decrypted and compressed with DivX, that purportedly are available for sale, trade or free download.  And although the Court does not accept the list, which is hearsay, as proof of the truth of the matters asserted therein, it does note that advertisements for decrypted versions of copyrighted movies first appeared on the Internet in substantial numbers in late 1999, following the posting of DeCSS.

The net of all this is reasonably plain.  DeCSS is a free, effective and fast means of decrypting plaintiffs' DVDs and copying them to computer hard drives. DivX, which is available over the Internet for nothing, with the investment of some time and effort, permits compression of the decrypted files to sizes that readily fit on a writeable CD-ROM.  Copies of such CD-ROMs can be produced very cheaply and distributed as easily as other pirated intellectual property.  While not everyone with Internet access now will find it convenient to send or receive DivX'd copies of pirated motion pictures over the Internet, the availability of high speed network connections in many businesses and institutions, and their growing availability in homes, make Internet and other network traffic in pirated copies a growing threat.

These circumstances have two major implications for plaintiffs.  First, the availability of DeCSS on the Internet effectively has compromised plaintiffs' system of copyright protection for DVDs, requiring them either to tolerate increased piracy or to expend resources to develop and implement a replacement system unless the availability of DeCSS is terminated.  It is analogous to the publication of a bank vault combination in a national newspaper.  Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bank's security system, forcing the bank to reprogram the lock.  Development and implementation of a new DVD copy protection system, however, is far more difficult and costly than reprogramming a combination lock and may carry with it the added problem of rendering the existing installed base of compliant DVD players obsolete.

Second, the application of DeCSS to copy and distribute motion pictures on DVD, both on CD-ROMs and via the Internet, threatens to reduce the studios' revenue from the sale and rental of DVDs.  It threatens also to impede new, potentially lucrative initiatives for the distribution of motion pictures in digital form, such as video-on-demand via the Internet.

In consequence, plaintiffs already have been gravely injured.  As the pressure for and competition to supply more and more users with faster and faster network connections grows, the injury will multiply.

“shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”(16)

“No person shall . . . offer to the public, provide or otherwise traffic in any technology . . . that—

“(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [the Copyright Act];

“(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act]; or [*317]


“(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under [the Copyright Act].”

“The bill does define the functions of the technological measures that are covered—that is, what it means for a technological measure to ‘effectively control access to a work’ . . . and to ‘effectively protect a right of a copyright owner under this title’ . . . . The practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work . . . then the ‘effectiveness’ test is met, and the prohibitions of the statute are applicable.  This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation.”(26)

Further, the House Commerce Committee made clear that measures based on encryption or scrambling “effectively control”access to copyrighted works,(27) although it is well known that what may be encrypted or scrambled often may be decrypted or unscrambled.  As CSS, in the ordinary course of its operation—that is, when DeCSS or some other decryption program is not employed—“actually works”to prevent access to the protected work, it “effectively controls access” within the contemplation of the statute.

Finally, the interpretation of the phrase “effectively controls access”offered by defendants at tria—viz., that the use of the word “effectively” means that the statute protects only successful or efficacious technological means of controlling access—would gut the statute if it were adopted.  If a technological means of access control is circumvented, it is, in common parlance, ineffective.  Yet defendants' construction, if adopted, would limit the application of the statute to access control measures that thwart circumvention, but withhold protection for those measures that can be circumvented.  In other words, defendants would have the Court construe the statute to offer protection where none is needed but to withhold protection precisely where protection is essential.  The Court declines to do so.  Accordingly, the Court holds that CSS effectively controls access to plaintiffs' copyrighted works.(28)

“Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to—

“(A) develop and employ technological means to circumvent a technological measure for the sole purpose of that person performing the acts of good faith encryption research described in paragraph (2); and


“(B) provide the technological means to another person with whom he or she is working collaboratively for the purpose of conducting the acts of good faith encryption research described in paragraph (2) or for the purpose of having that other person verify his or her acts [*321] of good faith encryption research described in paragraph (2).”

“(A) the person lawfully obtained the encrypted copy, phonorecord, performance, or display of the published work;

“(B) such act is necessary to conduct such encryption research;

“(C) the person made a good faith effort to obtain authorization before the circumvention; and

“(D) such act does not constitute infringement under this title . . . .”

Finally, defendants rely on the doctrine of fair use.  Stated in its most general terms, the doctrine, now codified in Section 107 of the Copyright Act, limits the exclusive rights of a copyright holder by permitting others to make limited use of portions of the copyrighted work, for appropriate purposes, free of liability for copyright infringement.  For example, it is permissible for one other than the copyright owner to reprint or quote a suitable part of a copyrighted book or article in certain circumstances.  The doctrine traditionally has facilitated literary and artistic criticism, teaching and scholarship, and other socially useful forms of expression.  [*322]  It has been viewed by courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment.

The use of technological means of controlling access to a copyrighted work may affect the ability to make fair uses of the work.(35)  Focusing specifically on the facts of this case, the application of CSS to encrypt a copyrighted motion picture requires the use of a compliant DVD player to view or listen to the movie.  Perhaps more significantly, it prevents exact copying of either the video or the audio portion of all or any part of the film.(36)  This latter point means that certain uses that might qualify as "fair" for purposes of copyright infringement—for example, the preparation by a film studies professor of a single CD-ROM or tape containing two scenes from different movies in order to illustrate a point in a lecture on cinematography, as opposed to showing relevant parts of two different DVDs—would be difficult or impossible absent circumvention of the CSS encryption.  Defendants therefore argue that the DMCA cannot properly be construed to make it difficult or impossible to make any fair use of plaintiffs' copyrighted works and that the statute therefore does not reach their activities, which are simply a means to enable users of DeCSS to make such fair uses.
[*66] Defendants have focused on a significant point.  Access control measures such as CSS do involve some risk of preventing lawful as well as unlawful uses of copyrighted material.  Congress, however, clearly faced up to and dealt with this question in enacting the DMCA.

The Court begins its statutory analysis, as it must, with the language of the statute. Section 107 of the Copyright Act provides in critical part that certain uses of copyrighted works that otherwise would be wrongful are “not . . . infringement[s] of copyright.”  Defendants, however, are not here sued for copyright infringement.  They are sued for offering and providing technology designed to circumvent technological measures that control access to copyrighted works and otherwise violating Section 1201(a)(2) of the Act.  If Congress had meant the fair use defense to apply to such actions, it would have said so.  Indeed, as the legislative history demonstrates, the decision not to make fair use a defense to a claim under Section 1201(a) was quite deliberate.

Congress was well aware during the consideration of the DMCA of the traditional role of the fair use defense in accommodating the exclusive rights of copyright owners with the legitimate interests of noninfringing users of portions of copyrighted works.  It recognized the contention, voiced by a range of constituencies concerned with the legislation, that technological controls on access to copyrighted works might erode fair use by preventing access even for uses that would be deemed "fair" if only access might be gained.(37) And it struck a balance among the competing interests. [*323]

The first element of the balance was the careful limitation of Section 1201(a)(1)'s prohibition of the act of circumvention to the act itself so as not to “apply to subsequent actions of a person once he or she has obtained authorized access to a copy of a [copyrighted] work. . . .”(38)  By doing so, it left “the traditional defenses to copyright infringement, including fair use, . . . fully applicable”provided “the access is authorized.”

Second, Congress delayed the effective date of Section 1201(a)(1)'s prohibition of the act of circumvention for two years pending further investigation about how best to reconcile Section 1201(a)(1) with fair use concerns.  Following that investigation, which is being carried out in the form of a rule-making by the Register of Copyright, the prohibition will not apply to users of particular classes of copyrighted works who demonstrate that their ability to make noninfringing uses of those classes of works would be affected adversely by Section 1201(a)(1).(39)

Third, it created a series of exceptions to aspects of Section 1201(a) for certain uses that Congress thought "fair," including reverse engineering, security testing, good faith encryption research, and certain uses by nonprofit libraries, archives and educational institutions.(40)

Defendants claim also that the possibility that DeCSS might be used for the purpose of gaining access to copyrighted works in order to make fair use of those works saves them under Sony Corp. v. Universal City Studios, Inc.  But they are mistaken. Sony does not apply to the activities with which defendants here are charged.  Even if it did, it would not govern here. Sony involved a construction of the Copyright Act that has been overruled by the later enactment of the DMCA to the extent of any inconsistency between Sony and the new statute.

Sony was a suit for contributory infringement brought against manufacturers of video cassette recorders on the theory that the manufacturers were contributing to infringing home taping of copyrighted television broadcasts.  The Supreme Court held that the manufacturers were not liable in view of the substantial numbers of copyright holders who either had authorized or did not object to such taping by viewers.  But Sony has no application here.

 When Sony was decided, the only question was whether the manufacturers could be held liable for infringement by those who purchased equipment from them in circumstances in which there were many noninfringing uses for their equipment.  But that is not the question now before this Court.  The question here is whether the possibility of noninfringing fair use by someone who gains access to a protected copyrighted work through a circumvention technology distributed by the defendants saves the defendants from liability under Section 1201.  But nothing in Section 1201 so suggests.  By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape.  A given device or piece of technology might have “a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act—but nonetheless still be subject to suppression under Section 1201.”(41)  Indeed, [*324] Congress explicitly noted that Section 1201 does not incorporate Sony.(42)

The policy concerns raised by defendants were considered by Congress. Having considered them, Congress crafted a statute that, so far as the applicability of the fair use defense to Section 1201(a) claims is concerned, is crystal clear.  In such circumstances, courts may not undo what Congress so plainly has done by "construing" the words of a statute to accomplish a result that Congress rejected.  The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution, a matter to which the Court turns below.  Defendants' statutory fair use argument therefore is entirely without merit.

1.   [court's footnote 2]  Shortly after the commencement of the action, the Court granted plaintiffs' motion for a preliminary injunction barring defendants from posting DeCSS. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000).  Subsequent motions to expand the preliminary injunction to linking and to vacate it were consolidated with the trial on the merits.  This opinion reflects the Court's findings of fact, conclusions of law and decision on the merits.

The Court notes the receipt of a number of amicus submissions.  Although many were filed by defendants' counsel on behalf of certain amici, and therefore were of debatable objectivity, the amicus submissions considered as a group were helpful.

2.   [court's footnote 3]  David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 739-41 (2000) (hereinafter “A Riff on Fair Use”).

3.   [court's footnote 6]  Open source is a software development model by which the source code to a computer program is made available publicly under a license that gives users the right to modify and redistribute the program.  The program develops through this process of modification and redistribution and through a process by which users download sections of code from a web site, modify that code, upload it to the same web site, and merge the modified sections into the original code.

4.   [court's footnote 60]  The licensing function initially was performed by MEI and Toshiba.  Subsequently, MEI and Toshiba granted a royalty free license to the DVD Copy Control Association (“DVD CCA”), which now handles the licensing function.  The motion picture companies themselves license CSS from the DVD CCA.

5.   [court's footnote 63]  The administrative fee is one million yen, now about $ 9,200, for each “membership category” selected by the licensee. Twelve membership categories are available, and one or more are selected by a licensee depending on the use which the licensee intends to make of the licensed technology. The membership categories are: content provider, authoring studio, DVD disc replicator, DVD player manufacturer, DVD-ROM drive manufacturer, DVD decoder manufacturer, descramble module manufacturer, authentication chip manufacturer for DVD-ROM drive, authenticator manufacturer for DVD decoder, integrated product manufacturer, and reseller.

6.   [court's footnote 69]  Revenue from the distribution of DVDs makes up approximately 35 percent of Warner Brothers' total worldwide revenue from movie distribution in the home video market.

7.   [court's footnote 70]  Distribution in the home video market accounts for approximately 40 percent of Warner Brothers' total income from movie distribution.

8.   [court's footnote 79]  Substantial questions have been raised both at trial and elsewhere as to the veracity of Mr. Johansen's claim.  See [Exhibit to Record] (“Our analysis indicates that the primary technical breakthroughs were developed outside of the Linux development groups.”).

9.   [court's footnote 82]   Some of these programs perform only a portion of what DeCSS does and must be used in conjunction with others in order to decrypt the contents of a DVD.  Some of defendants' claims about these other means proved baseless at trial.

10.   [court's footnote 88]  As Mr. Corley testified, the download process generally begins with the appearance of a dialog box, or small window, prompting the user to confirm the location on the user's computer hard drive where the downloaded software will be stored.  The actual download does not begin until the user provides the computer with this information.  It is possible also to create a link that commences the download immediately upon being clicked.

11.   [court's footnote 91]  The other two defendants entered into consent decrees with plaintiffs. Plaintiffs subsequently amended the complaint to add 2600 Enterprises, Inc. as a defendant.

12.   [court's footnote 107]  DivX effects what is known as “lossy” compression-it achieves its reduction in file size by eliminating some of the data in the file being compressed.  The trick, however, is that it seeks to do so by eliminating data that is imperceptible, or nearly so, to the human observer.

13.   [court's footnote 109]  Defendants produced an expert whose DivX of a DeCSS decrypted file was of noticeably lower quality than that of plaintiffs' expert's DivX'd film.  The reasons for the difference are not clear.  The Court is satisfied, however, that it is possible to make high quality 650 MB DivX'd copies of many films.

14.   [court's footnote 111]  The copies do not require resynchronization of the sound and graphics.

15.   [court's footnote 119]  It should be noted here that the transmission time achieved by plaintiff's expert, Dr. Shamos, almost certainly was somewhat skewed because the work was done late at night on a university system after the close of the regular school year, conditions favorable to high effective transmission rates due to low traffic on the system.

16.   [court's footnote 128]  WIPO Copyright Treaty, Apr. 12, 1997, Art. 11, S. Treaty Doc. No. 105-17 (1997), available at 1997 WL 447232.

17.   [court's footnote 17]  There is an excellent account of the legislative history of the statute.  Nimmer, A Riff on Fair Use, 148 U. PA. L. REV. at 702-38.

18.   [court's footnote 131]  H.R. Rep. No. 105-551( Part I), 105th Cong., 2d Sess. at 17 (1998) (“Judiciary Comm. Rep.”).

19.   [court's footnote 132]  Id. at 18.

20.   [court's footnote 1]  Plaintiffs rely also on Section 1201(b), which is very similar to Section 1201(a)(2) except that the former applies to trafficking in means of circumventing protection offered by a technological measure that effectively protects “a right of a copyright owner in a work or a portion thereof” whereas the latter applies to trafficking in means of circumventing measures controlling access to a work.  See generally 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (“Nimmer”) § 12A.03[C] (1999).  In addition, as noted below, certain of the statutory exceptions upon which defendants have relied apply only to Section 1201(a)(2).

21.   [court's footnote 135]  In their Post-Trial Brief, defendants argue that “at least some of the members of Congress understood § 1201 to be limited to conventional devices, specifically ‘black boxes,’ as opposed to computer code.”  However, the statute is clear that it prohibits “any technology,” not simply black boxes.  17 U.S.C. § 1201(a)(2) (emphasis added).

22.   [court's footnote 136]  17 U.S.C. § 1201(a)(3)(A).

23.   [court's footnote 137]  Decryption or avoidance of an access control measure is not “circumvention” within the meaning of the statute unless it occurs “without the authority of the copyright owner.”  17 U.S.C. § 1201(a)(3)(A).  Defendants posit that purchasers of a DVD acquire the right “to perform all acts with it that are not exclusively granted to the copyright holder.”  Based on this premise, they argue that DeCSS does not circumvent CSS within the meaning of the statute because the Copyright Act does not grant the copyright holder the right to prohibit purchasers from decrypting.  As the copyright holder has no statutory right to prohibit decryption, the argument goes, decryption cannot be understood as unlawful circumvention.  The argument is pure sophistry.  The DMCA proscribes trafficking in technology that decrypts or avoids an access control measure without the copyright holder consenting to the decryption or avoidance.  See Judiciary Comm. Rep. at 17-18 (fair use applies “where the access is authorized”).  Defendants' argument seems to be a corruption of the first sale doctrine, which holds that the copyright holder, notwithstanding the exclusive distribution right conferred by Section 106(3) of the Copyright Act, 17 U.S.C. § 106(3), is deemed by its “first sale” of a copy of the copyrighted work to have consented to subsequent sale of the copy.  See generally 2 Nimmer § § 8.11-8.12.

24.   [court's footnote 138]  [17 U.S.C. ] § 1201(a)(3)(B).

25.   [court's footnote 139]  RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889, No. C99-2070P, 2000 WL 127311, *9 (W.D. Wash. Jan. 18, 2000).

26.   [court's footnote 140]  House Comm. on Judiciary, Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998 (“Section-by-Section Analysis), at 10 (Comm. Print 1998) (emphasis in original).

27.   [court's footnote 141]  H.R. Rep. No. 105-551( Part II), 105th Cong., 2d Sess. at 39 (1998) (“Commerce Comm. Rep.”).

28.   [court's footnote 142]  Defendants, in a reprise of their argument that DeCSS is not a circumvention device, argue also that CSS does not effectively control access to copyrighted works within the meaning of the statute because plaintiffs authorize avoidance of CSS by selling their DVDs.  The argument is specious in this context as well.

29.   [court's footnote 145]  1 Nimmer § 12A.03[A], at 12A-15 (1999 Supp.).

30.   [court's footnote 149]  [17 U.S.C.] § 1201(f)(3).

31.   [court's footnote 151]  Commerce Comm. Rep. at 43.

32.   [court's footnote 152]  17 U.S.C. § 1201(g)(4).

33.   [court's footnote 154]  In any case, Section 1201(g), where its requirements are met, is a defense only to claims under Section 1201(a)(2), not those under Section 1201(b).

34.   [court's footnote 157]  Like Section 1201(g), moreover, Section 1201(j) provides no defense to a Section 1201(b) claim.

35.   [court's footnote 159]  Indeed, as many have pointed out, technological means of controlling access to works create a risk, depending upon future technological and commercial developments, of limiting access to works that are not protected by copyright such as works upon which copyright has expired. . . .

36.   [court's footnote 160]  Of course, one might quote the verbal portion of the sound track, rerecord both verbal and nonverbal portions of the sound track, and video tape or otherwise record images produced on a monitor when the DVD is played on a compliant DVD player.

37.   [court's footnote 162]  See, e.g., Commerce Comm. Rep. 25-26.

38.   [court's footnote 163]  Judiciary Comm. Rep. 18.

39.   [court's footnote 165]  17 U.S.C. § § 1201(a)(1)(B)-(E).  The rule-making is under way.  65 F.R. 14505-06 (Mar. 17, 2000); See also (visited July 28, 2000).

40.   [court's footnote 166]  17 U.S.C. § § 1201(d), (f), (g), (j).

41.   [court's footnote 169]  RealNetworks, Inc., 2000 WL 127311, at *8 (quoting 1 Nimmer § 12A.18[B], at 12A-130) (internal quotation marks omitted).

42.   [court's footnote 170]  Section-by-Section Analysis 9 (“The Sony test of ‘capability of substantial non-infringing uses,’ while still operative in cases claiming contributory infringement of copyright, is not part of this legislation . . . .”).

43.   [court's footnote 171]  17 U.S.C.§ 1201(a)(2).

44.   [court's footnote 176] See 2 The Compact Edition of the Oxford English Dictionary 3372 (1971).

45.   [court's footnote 177] See 2 id. 2340.

46.   [court's footnote 178] See 1 id. 1979.

47.   [court's footnote 179] See, e.g., Strom v. Goldman, Sachs & Co., 202 F.3d 138, 146-47 (2d Cir. 1999).

48.   [court's footnote 180] See DVD Copy Control Ass'n, Inc. v. McLaughlin, No. CV 786804, 2000 WL 48512, *4 (Cal. Super. Jan. 21, 2000) (“website owner cannot be held responsible for all of the content of the sites to which it provides links”); Richard Raysman & Peter Brown, Recent Linking Issues, N.Y.L.J., Feb. 8, 2000, p. 3, col. 1 (same).